Rajasthan High Court - Jaipur
University Of Rajasthan vs Dr. S.C. Gupta And Ors. on 9 July, 2007
Equivalent citations: RLW2008(1)RAJ412
Author: R.C. Gandhi
Bench: R.C. Gandhi, Vineet Kothari
JUDGMENT R.C. Gandhi, J.
1. This appeal has been preferred under Section 18 of the Rajasthan High Court Ordinance 1949 against the order dated 5.5.1999 passe in Civil Misc., Application No. 231/1997.
2.1. Brief facts of this case are that the petitioner was working as Associate Professor in the University of Rajasthan. A seniority list of Associate Professor was declared. In the said seniority list, name of the petitioner was not shown. Being aggrieved with this, the petitioner approached the Court by way of filing S.B. Civil Writ petition No. 1329/1991 seeking a directions that his name be included in the list of candidates interviewed for the post of Associate Professor (Reader). The said Writ petition came to be allowed vide order dated 16.10.1992 directing respondent-University to include the petitioner's name in the list of candidates interviewed by the University of Rajasthan for the post of Associate Professor (Reader) under the Rules governing the department of Economic Administration and Financial Management (for short 'the E.A.F.M.). The name of the petitioner was included in the list of the candidates to be interviewed. He was subjected to the process of selection and selected. He filed a contempt petition No. 515/93 seeking implementation of the order dated 16.10.1992 passed in the writ petition No. 1329/91. The learned Single Judge decided the contempt petition while doing so he issued certain additional directions also such as for fixation of pay and seniority which was beyond the scope of the contempt jurisdiction. Not satisfied with this even, the writ - petitioner filed a Misc., Application No. 231/1997 which came to be decided in the following terms:
As a result of the above discussion and keeping in view the seniority of the petitioner as per C.A.S. since the petitioner already stood promoted as Associate Professor, pursuant to the direction of this Court dated 16.10.1992, as he was found suitable for the same pursuant to the recommendations of the Screening Committee, I am of the view that the respondents have to make proper placement of the petitioner in the order of seniority vis-a-vis Dr. S.K. Batra, who was immediately junior to the petitioner from the date of joining since the petitioner had joined the University prior to Dr. S.K. Batra, and consequently ranks senior in terms of his appointment, should be ranked senior as Associate Professor as per the requirement of Rule 13A of the Rules.
The respondents are accordingly directed to publish the final seniority list within four weeks and provisional seniority list published earlier on 29.8.1997, by the respondents shall stand modified accordingly.
2.2. The order under appeal has been challenged on the ground that the learned Single Judge has travelled beyond his jurisdiction while issuing such directions in a contempt petition which is beyond the scope of contempt jurisdiction.
3. Heard learned Counsel for the parties. Learned counsel for the respondent at the very outset has raised objections with regard to maintainability of the appeal under Section 19 of the Contempt of Court Act, 1971. Learned counsel for the appellant submitted that the appeal is maintainable under Section 18 of the High Court Ordinance, 1949 and the learned Counsel in support of his plea has relied upon the judgment of the Hon'ble Apex Court delivered in the case of Midnapore Peoples' Coop. Bank Ltd. and Ors. v. Chunilal Nanda and Ors. . In this judgment, the Apex Court was dealing with the similar point as to whether appeal against such an order is maintainable and framed the following questions for consideration:
9. On the aforesaid facts and the contentions urged, the following questions are arise for consideration:
(i) Where the High Court, in a contempt proceeding, renders a decision on the merits of a dispute between the parties, either by an interlocutary order or final judgment, whether it is appealable under Section 19 of the Contempt of Courts Act, 1971? If not, what is the remedy of the person aggrieved?
(ii) Where such a decision on merits is rendered by an interlocutory order of a learned Single Judge, whether an inter- court appeal is available under Clause 15 of the Letters Patent?
(iii) In a contempt proceeding initiated by a delinquent employee (against the enquiry officer as also Chairman and Secretary in charge of the employer Bank), complaining of disobedience of an order directing completion of the enquiry in a time-bound schedule, whether the court can direct (a) that the employer shall reinstate the employee forthwith; (b) that the employee shall not be prevented from discharging his duties in any manner; (c) that the employee shall be paid all arrears of salary : (d) that the enquiry officer shall cease to be the enquiry officer and the employer shall appoint a fresh enquiry officer; and (e) that the suspension shall be deemed to have been revoked.
The court upon consideration of the framed questions and the position which emerged from the judgments considered, in regard to appeals against orders in contempt proceedings, summarised thus:
I. An appeal under Section 19 is maintainable only against an order or decision of the High Court passed in exercise of its jurisdiction to punish for contempt, that is, an order imposing punishment for contempt.
II. Neither an order declining to initiate proceedings for contempt, nor an order initiating proceedings for contempt nor an order dropping the proceedings for contempt nor an order acquitting or exonerating the contempnor, is appealable under Section 19 of the CC Act. In Special circumstances, they may be open to challenge under Article 136 of the Constitution.
III. In a proceeding for contempt, the High Court can decide whether any contempt of court has been committed, and if so, what should be the punishment and matters incidental thereto. In such a proceeding, it is not appropriate to adjudicate or decide any issue relating to the merits of the dispute between the parties.
IV. Any direction issued or direction made by the High Court on the merits of a dispute between the parties, will not be in the exercise of "jurisdiction to punish for contempt" and, therefore, not appealable under Section 19 of the CC Act. The only exception is where such direction or decision is incidental to or inextricably connected with the order punishing for contempt, in which event the appeal under Section 19 of the Act, can also encompass the incidental or inextricably connected directions.
V. If the High Court, for whatsoever reason, decides an issue or makes any direction, relating to the merits of the dispute between the parties, in a. contempt proceedings, the aggrieved person is not without remedy. Such an order is open to challenge in an inter-court appeal (if the court appeal was of a learned Single Judge and there is a provision for an intra-court appeal), or by seeking special leave to appeal under Article 136 of the Constitution of India (in other cases).
4. In view of the above, the Supreme Court adjudicated point No. I with regard to the maintainability of the Special Appeal under Clause 15 of the Letters Patent as intra court appeal corresponding to Rule 18 of the Rajasthan High Court Ordinance, 1949 wherein the appeal was dismissed by the Division Bench holding it not maintainable. The Apex Court pronounced in para 18 of the judgment as under:
18. The Division Bench, therefore, committed a serious and obvious error in holding that the appeal (MAT No. 4075 of 1998) was not maintainable under Clause 15 of the Letters Patent. Though the order of the learned Single Judge dated 20.11 1998, by which several directions to the Bank with reference to the first respondent were issued, is not a final "judgment", it is an "interlocutory judgment" which finally decides several rights and obligations of the employee vis-a-vis the employer and, therefore, appealable under Clause 15 of the Letters Patent.
5. The Apex Court further observed in para 21 as under:
21. There was also no justification for the further direction by the learned Single Judge in the contempt proceedings, that too by an interlocutory order, that the complainant should immediately and forthwith be restrained into the service of the Bank, and shall be deemed to be in the service of the Bank all through, that the employee shall not be prevented in any manner from discharging his duties and that he shall be paid all arrears of salary within four weeks, and that the suspension order shall be deemed to have been revoked. These were totally outside the scope of the proceedings for contempt and amounted to adjudication of rights and liabilities not in issue in the contempt proceedings.
6. It was held by the Supreme Court that an appeal against such an order is maintainable if intra court appeal is available. Such an intra court appeal can be filed and is maintainable under Section 18 of the High Court Ordinance, 1949.
7. In J.S. Parihar v. Ganpat Duggar and Ors. , the issue of law dealt with by the Supreme Court was similar. Seniority list of the Engineers in Rajasthan Civil Engineering Services (Public Health Branch) was the subject matter of writ petition No. 560/1979 which was decided by the order dated 6.10.1998. The Division Bench declared the said list as un-constitutional and directed to the respondents to prepare fresh seniority list afresh to determine the inter se seniority on the basis of the grant of promotion to the appellants. This order was reiterated by the other Division Benches. Contempt proceedings were initiated seeking implementation of the said order passed by the Division Benches invoking Section 12 of the Contempt of Courts Act, 1971, The learned Single Judge exercising contempt jurisdiction besides seeking implementation of the order also directed that;
Of course, it appears quite just and reasonable that the non-petitioners did not intend to disobey the directions given by this Court on account of the legal advice that has been tendered to them and on account of certain interpretations put to the judgment rendered in Kailash Chand Goyal case on the basis of Gyaneshwar case and as some confusion prevailed with the non- petitioners on account of that, they could not comply this order. However, the non-petitioners are directed to comply with the order of this Court dated 22.3.1990 by giving effect to the ratio of the decision that has been rendered by a Division Bench of this Court in Kailash Chand Goyal case and the seniority list should be prepared as directed in the judgment in Kailash Chand Goyal case and promotions should be accorded accordingly. If this order is hot complied with within a period of six months from today, the petitioner will be free to move a contempt petition afresh against the non-petitioners.
8. State filed an appeal against this order. Preliminary objection was taken on the maintainability of the appeal. The Division Bench held that the appeal is not maintainable under Section 19 of the Contempt of Courts Act, 1917 It was further held by the Division Bench that appeal would be maintainable as a letters patent appeal as the direction issued by the learned Single Judge would be a judgment within the meaning of Section 18 of the Rajasthan High Court Ordinance, 1949. Exercising such jurisdiction, the Division Bench set aside the direction issued by the learned Single Judge. The his was taken to the Supreme-Court.
9. Dealing with the maintainability of the appeal in J.S. Parihar's case (supra), the Supreme Court observed as under:
6. The question then is whether the Division Bench was right in setting aside the direction issued by the learned Single Judge to redraw the seniority list. It is contended by Mr. S.K. Jain, the learned Counsel appearing for the appellant, that unless the learned Judge goes into the correctness of the decision taken by the Government in preparation of the seniority list in the light of the law laid down by three benches, the learned Judge cannot come to a conclusion whether or not the respondent had willfully or deliberately disobeyed the orders of the Court as defined under Section 2(b) of the Act. Therefore, the learned Single Judge of the High Court necessarily has to go into the merits of that question. We do not find that the contention is well founded. It is seen that, admittedly, the respondents had prepared the seniority list on 2.7.1991. Subsequently, pro-motions came to be made.
10. It has been held that the appeal under Section 18 of the High Court Ordinance, 1949 is maintainable. Objection taken by the respondent is, therefore, overruled.
11. So far as the question as to whether directions in the nature of adjudication of the rights of the parties could be issued by the learned Single Judge exercising contempt jurisdiction is concerned, it is not res-integra and has been set at rest by the Supreme Court. It is noticed that the Misc., Application, wherein the order under appeal has been passed, was preferred after dismissal of the contempt petition holding that the respondents have not committed any violation of the order sought to be implemented and despite that directions beyond the scope of the order sought to be implemented were issued. Similar was the position in the case titled as U.O.I. and Ors. v. Subedar Devassy Pv . In this case also, the contempt petition was presented seeking implementation of the Court Order. The Court observed that the steps taken by the contempnor could not be said to be commission of the Contempt of the Court and the contempt petition was disposed of holding that the action of the respondents is not in any manner contemptuous or disrespectful. Thereafter, certain directions were issued. Those directions were challenged by way of appeal before the Division Bench. The matter went up to the Supreme Court. The Supreme Court held as under:
If any party concerned is aggrieved by the order which in its opinion is wrong or against the rules or its implementation is neither practicable nor feasible, it should always either approach the court that passed the order or invoke jurisdiction of the appellate court. Right-less or wrongness of the order cannot be urged in contempt proceedings. Right or wrong, the order has to be obeyed. Flouting an order of the court would render the party liable for contempt. While dealing with an application for contempt, the court cannot traverse beyond the order, non-compliance with which is alleged. In other words, it cannot say what should not have been done or what should have been done? It cannot traverse beyond the order. It cannot test the correctness or otherwise of the order or give additional direction or delete any direction. That would be exercising review jurisdiction while dealing with an application for initiation of contempt proceedings. The same would be impermissible and indefensible.
12. Considering the above referred judgments, we have no hesitation in holding that while disposing of the contempt petition and the Misc., Application, the directions issued by the learned Single Judge are beyond the scope of the judgment sought to be implemented as the learned Single Judge has travessed beyond the scope of its implementation. The said directions passed by the learned Single Judge on 12.2.1997 while deciding contempt petition & order dated 5.5.1999 deciding the misc., application are liable to be set aside. However, if under these directions some benefit has been extended to the respondent, the same will not be recovered back from him.
13. At this stage, learned Counsel for the respondents stood up and interrupted the dictation of the judgment by the Court submitting that he has not been heard though we have already heard him and before dictating the judgment Court asked the learned Advocates of the parties, that should we proceeded to dictate the judgment which was nodded by the learned Counsel. Inspite of this, we do not approve his such conduct, but despite that we permitted him to argue his case again. He has submitted that in the contempt petition direction passed are in consonance with the judgment delivered in the writ petition. In the writ petition, the relief granted to the petitioner is to the extent that his name should be included in the list of the candidates to be interviewed for the post of Associate Professor (Reader) by the University under the rules governing the department of E.A.F.M. The scope of the contempt jurisdiction is to implement this direction alone and not to pass further directions which were not ever subject matter of the writ petition. In deciding the contempt petition, the learned Single Judge passed following direction:
(1) to publish a provisional seniority list by making proper placement of the petitioner as Associate Professor in the Career Advancement Scheme and other candidates in the categories as referred to above from the date when the seniority of the petitioner as Associate Professor viz-a-viz other candidates is due and the said provisional seniority list should be published positively within a period of 90 days from today:
(2) the question with regard to the pay-fixation of the petitioner viz-a-viz the candidates, who were immediately placed junior to the petitioner as per the original seniority list should be determined by the respondents as soon as their seniority is finalized and published.
The petitioner shall have liberty to file his objections to the provisional seniority list within 30 days of it's publication.
In case the aforesaid directions are not complied with by the respondents within the stipulated period as referred to above, the petitioner shall have the liberty to move this Court again for seeking appropriate directions in this matter.
14. These directions are beyond the scope of the implementation of the order passed in the writ petition as observed in the preceding paragraphs, therefore, we hold that these directions passed by the learned Single Judge were without jurisdiction being beyond the scope of the contempt jurisdiction.
15. It is settled position of law that in implementation of the judgment, if the order passed by the respondents is in conformity with the judgment or it has been passed in deviation, no further application for clarification can be filed as it provides a new cause of action to the aggrieved person to approach the court as held by the Supreme Court in case title J.S. Parihar v. Ganpat Duggar (supra) as under:
The question is whether seniority list is open to review in the contempt proceedings to find out, whether it is in conformity with the directions issued by the earlier Benches It is seen that once there is an order passed by the Government on the basis of the directions issued by the Court, there arises a fresh cause of action to seek redressal in an appropriate forum. The preparation of the seniority list may be wrong or may be right or may not be in conformity with the directions. But that would be a fresh cause of action for the aggrieved party to avail of the opportunity of the judicial review.
16. In view of above, we allow this appeal and set aside the order passed in Contempt Petition dated 12.2.1997 and in the Misc., Application dated 5.5.1999. No order as to costs.